Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

This week, in Harrison v. Benchmark Electronics Huntsville, Inc., the 11th Circuit reversed the trial court's summary judgment in favor of Benchmark (BEHI), and remanded the case for a jury trial.  Harrison was employed by Aerotek, a company that places temporary workers at BEHI.  He worked as a "debug tech", dealing with electronic boards.  Harrison suffered from epilepsy (since the age of 2) and took barbiturates to control his condition.  BEHI had a practice of hiring temporary workers as permanent employees if a supervisor believed that they would meet BEHI's needs.  Harrison submitted an application and took a pre-offer drug test, that was positive for barbiturates.  Although the testimony was in dispute, the evidence most favorable to Harrison indicates that his supervisor, Anthony, found out about the positive drug test and confronted Harrison about it.  Harrison provided a valid prescription, and Anthony called the MRO and passed the phone to Harrison and listened in as he answered questions from the MRO, including the fact that he took barbiturates due to his epilepsy.  After this conversation was overheard by Anthony, Anthony told HR not to prepare an offer letter for Harrison.  Anthony also advised Aerotek not to return Harrison to BEHI, and Aerotek complied, telling Harrison he had a performance and attitude problem and had been accused of threatening Anthony.  Harrison was terminated by Aerotek.

Harrison filed a charge with EEOC, and the EEOC determined that he did not have a disability and thus did not investigate the improper medical inquiry claim.  A right to sue letter was issued to Harrison, and he filed his suit.  The court first examined whether Harrison, a "non-disabled individual", can state a private cause of action for a prohibited medical inquiry in violation of Section 12112(d).  The court found that such a cause of action exists.  The court further found that an employer may conduct follow-up questioning in response to a positive drug test, but these questions are limited by Section 12112(d)(2), which prohibits disability-related inquiries.  "A reasonable jury could infer that Anthony's presence in the room was an intentional attempt likely to elicit information about a disability in violation of the ADA's prohibition against pre-employment medical inquiries". 

Practice pointers.  Although this case was decided under the ADA prior to the 2008 amendments, the logic is still applicable.  Employers must limit their pre-offer inquiries, even with a positive drug test, to non-disability related questions.  Of course, this is very difficult to do.  Additionally, as I have often written, it is important to train supervisors as to what they can and cannot do in relation to the ADA (as well as other employment laws).  The timing of Harrison's termination is certainly suspect.

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It appears as if the EEOC is taking a more active role in filing lawsuits against employers in the name of the EEOC.  Over the last several weeks, the EEOC has filed at least  9 lawsuits in Alabama against various employers.  These lawsuits include alleged violations of the ADA against  two different employers when employees were terminated after the employers learned the employees were HIV positive, allegations that the Age Discrimination in Employment Act was violated when the employer failed to promote a 50 year old employee and hired a younger, less qualified individual, allegations that an employee was terminated because she was pregnant, and allegations that a racially hostile work environment existed because black employees were subjected to the use of the "N" word and the display of a noose in the workplace.  This trend appears to be occurring around the country, with notable cases being filed by the EEOC against Pace Airlines, which operated Hooters Air on behalf of an Asian flight attendant who was fired after complaining that only white workers were being promoted, and a case against a Chicago area automobile dealer alleging that female employees were called obscene epithets and female customers were call "dingbats".

Based on the timing of these lawsuits, it is difficult to determine if this will be a long term trend based on a change in EEOC philosophy, or if it was a last minute rush to file the suits before the end of the fiscal year, which ended September 30, 2009.  Is it possible the EEOC has quotas for the number of lawsuits it files?

The EEOC also recently announced a record $6.2 million settlement of a nationwide class action lawsuit against Sears over the firing of disabled workers.  According to Law.com, Sears fired numerous employees who took leave for work related injuries and that Sears "routinely declined to make accommodations to bring back employees who had taken workers' compensation leave or to offer them a brief extension of their leave to make it possible for them to return later". 

In other EEOC news, the Wall Street Journal today reports that there is a large increase in retaliation claims being filed by employees against employers.  For the fiscal year ending September 30, 2008, retaliation claims rose 23% to 32,690, more than a third of all claims filed with the EEOC.  Although many of the retaliation claims are filed together with underlying discrimination claims, as I often point out during speeches, an employer can be guilty of retaliation even if cleared of the underlying claim of discrimination. 

Practice Pointer.  As evidenced by the types of claims alleged in the lawsuits filed by the EEOC, it appears as if all types of discrimination may be occurring in the workplace.  It is a good time, as we get to the end of the calender year, for companies to review their policies and procedures, make sure that their work force, including supervisors, receives training on the companie's anti-discrimination policies, and that  HR continues to monitor the workplace to avoid claims of discrimination. 

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For only the second time, the Alabama Court of Civil Appeals addressed the merits of the Alabama Age Discrimination in Employment Act (AADEA) in the case of Lambert v. Mazer Discount Home Centers, Inc. In a 30 page opinion, the Court noted that Mr. Lambert had worked for Mazer for 29 years, and at the time of his termination, was vice president of marketing, responsible for purchasing building materials, deal buying and planning and purchasing times for the types of advertising for Mazer products and stores. Mike Mazer took over as president of Mazer in 2005, and spoke with Lambert on more than one occasion about him being away from the office working on a vacation home and a rental home he had in Florida. It also appeared that he was distracted from his work at Mazer due to the extensive renovations the rental home needed. In early 2006, Issues arose concerning Lambert ordering kitchen and bath products improperly. Lambert admitted that Mike Mazer expressed his displeasure over the kitchen and bath problems. Finally, Mike Mazer became increasingly dissatisfied with Lambert's handling of the advertising for Mazer. In May, 2006, when Lambert was 47, he was discharged, refused to accept a severance package, and his job duties were assigned to 3 existing employees, 2 older than him and one younger. Lambert sued Mazer under the AADEA.

In proving an AADEA claim, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff is successful, the defendant must articulate a nondiscriminatory reason for the employees rejection. The plaintiff must then have an opportunity to prove by a preponderance of the evidence that the reason offered by the defendant was a pretext for discrimination.

In order to prove his prima facie case of discrimination, the court held that Lambert was not required to prove that he was replaced by a younger employee. Instead, the plaintiff must prove 1) that he was in a protected group and was adversely affected by an employment decision; 2) that he was qualified to assume another position at the time of discharge; and 3) evidence that supports a reasonable inference of age discrimination. Lambert met the first two elements, but failed to prove an inference of discrimination. Although Lambert offered age-related comments made by Mazer, these comments were not about  Lambert or his performance, and therefore failed to support his claim. Furthermore, the fact that one of the three employees who were assigned Lambert's job duties was younger did not amount to substantial evidence demonstrating age discrimination. Lambert's age discrimination claim therefore failed as a matter of law.

Practice pointer. The Alabama Court of Civil Appeals did an excellent job of following federal law applicable to the federal Age Discrimination in Employment Act, which governs the AADEA. As more AADEA claims are filed in state court, I anticipate that more decisions will be rendered by the Alabama Court of Civil Appeals and ultimately the Alabama Supreme Court.

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On September 23,  the EEOC  published it's proposed regulations for the ADA to conform to the ADA Amendments Act of 2008.   The 93 pages of proposed regulations start the 60 day period for public comments on the proposal, although it is not clear when the final regulations will be published.  It is unlikely that the final regulations will be issued in 2009.  The EEOC published a series of questions and answers last week, and the proposed regulations can also be found on the EEOC website.  The proposed regulations appear to be much more specific then the existing regulations, listing specific physical and mental impairments that will "consistently" qualify as disabilities under the ADA, addressing types of action that will constitute "regarded as" discrimination and looking at how to determine impairments when mitigating measures are used by the employee. 

Practice pointer.  It is important to keep in mind that these are only the proposed regulations to be adopted by the EEOC. After comments are received, the final regulations will be published, probably early next year.  I believe that no matter what the final regulations are, the number of people who are considered "disabled" will increase, and the cost of implementing the new regulations will exceed the $100 million per year the EEOC estimates.

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As I was watching the news this morning, there were numerous reports of H1N1 flu being reported at schools around the state.  Many experts expect that it will spread throughout the country, reaching pandemic proportions.  As the H1N1 flu continues to spread, it raises many issues for the workplace.  First, the question is how to prevent it's spread.  The CDC's website has a great deal of information addressing the prevention of the spread of the flu.  Wash your hands often, if you sneeze or cough, do it into a tissue and throw it away, sanitize surfaces (clorox wipes seem to work), and if you are sick, stay away from others for 24 hours after the fever breaks. 

Another issue is the impact of the ADA on the workforce in relation to the H1N1 flu.  At pandemicflu.gov, there is a FAQ section.  Questions can be asked of the workforce about the flu if done correctly.  The website sets forth the following:  "An inquiry would not be disability-related if it identified non-medical reasons for absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that weaken immunity)."  Before asking any of these questions, employers should review this website and/or consult with their attorney to ensure that the are in compliance with the ADA.

H1N1 flu may also have FMLA implications.   Assuming an employee qualifies for FMLA leave,  he/she may be entitled to FMLA leave if they are suffering from the flu.  The employee would need to be absent 3 or more days, and would have to be treated by a health care provider on at least 2 occasions or visit a health care provider 1 time, resulting in a regimen of continuing treatment under the supervision of the health care provider.

Practice Pointers  The experts are predicting that the Swine Flu will have a major impact across the country.  It is already being felt in Alabama in numerous schools and colleges, and is creeping into the workplace.  HR needs to prepare now, if it has not already done so, to cope with the problems that may be caused by the flu.  The problems may include extended absences, controlling the spread of the flu, and making sure that there is enough manpower to get the work done.  Don't be tempted to permit sick workers, or their children, to be at the workplace.  Finally, treat all employees the same.  If an employee does not have any leave time left, and does not qualify for FMLA leave, do you provide additional paid time off? Unpaid time off? Termination?  Whatever the decision is, it must be consistently applied to all of the workforce. 

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On May 1, I published an entry addressing social networking in the workplace.  Subsequent to that time,  I had the opportunity to give another presentation on social networking.  Some interesting questions were asked by attendees that raised additional issues that need to be considered by employers when their employees are using social networking sites for business purposes.  One company permits its workers to use social networking sites to communicate for business purposes after regular business hours.  This raises questions concerning the FLSA and overtime: if non-exempt employees are conducting company business from their personal computers/PDAs, after regular business hours, are they entitled to compensation, including overtime if they work more than 40 hours a week?  Are the employees "on call", thus entitling them to compensation?

Another issue is the ownership of the information exchanged between an employer and an employee on personal computers/PDAs: should someone leave their employment, can they use information on their personal computers/PDAs when they start working for someone else who is a competitor?  Is the information confidential if no steps are taken to make it confidential?

One question that was asked had ADA implications:  a supervisor learned from a social networking site that one of the employees was suffering from depression.  Did the supervisor have an obligation to report this to HR?  If so, did HR have an obligation to go through the interactive process with the employee to determine if the depression was impacting his ability to work?  If so, were there any reasonable accommodations that could be made?

Practice Pointer.  Technology is moving too fast for the courts to keep pace.  Answers to these questions, and many others, will take years to wind their way through the courts.  In the meantime, it is recommended that employers adopt appropriate policies and procedures concerning the use of social networking sites for company business, and confidentiality and ownership of information that may be on personal computers/PDAs. 

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The United States Supreme Court recently refused to hear the case of Kellogg v. Energy Safety Services, Inc. which dealt with the question of whether driving is a major life activity under the ADA.  Kellogg worked as a safety technician for Energy Safety Services, and was required to drive a company vehicle to numerous work sites.  Kellogg  was diagnosed with epilepsy, and although she was cleared to continue working, her doctor prohibited her from driving.  Her employer advised her in writing that she worked in a "safety-sensitive" position, and she could not return to work without a full release from her doctor.  Kellogg sued under the ADA, and the jury found in her favor, awarding nearly $150,000 in compensatory damages and back pay.  On appeal, the 10th Circuit reversed the trial court, finding that driving is not a major life activity under the ADA.  The Supreme Court denied certiorari on Energy Safety Services application.  The following circuits have held that driving is not a major life activity under the ADA:  2nd, 3rd, 4th, 7th, 10th and 11th.  The 11th Circuit covers Alabama. 

Practice Pointer.  Although all these cases were decided under the old ADA, it must be noted that driving was not listed as a major life activity in the EEOC regulations under the old ADA, and it is not listed in the revised list of major activities under the ADA Amendments Act of 2008.  I anticipate as new cases wind their way through the courts under the ADA Amendments Act of 2008, this issue will continue to be addressed. 

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Hugh Butler filed his lawsuit against his former employer, Greif, Inc. alleging a violation of the anti-retaliation provision of the Americans with Disabilities Act (ADA).  Butler's attorney filed the charge with the EEOC, which is a pre-requisite to pursuing a claim under the ADA.  However, Butler failed to verify the charge since he did not sign it under oath, and under penalty of perjury.  The trial court granted summary judgment in favor of Greif.  On appeal, the Eleventh Circuit Court of Appeals affirmed the summary judgment, finding that the attorney's signature did not constitute a verification.  The court found that an attorney can verify the charge so long as he swears to the truth of the facts stated in the charge and has personal knowledge of those facts.  The charge could have been verified at any time while the charge was pending, but Butler failed to do so.  It should be noted that Butler failed to cooperate with the EEOC in their investigation, and thus dis-entitled him to any equitable relief, referring to a case from the Third Circuit that held that the "verification requirement should be subject to waiver "when equity so requires", such as when, as in that case, the employer responded to the EEOC charge on the merits, declined to challenge the sufficiency of the charge before the EEOC, and later attempted to move to dismiss the suit for lack of verification."

Practice Pointers.  From an employees' perspective, it is imperative that the EEOC charge be verified.  Employees must also cooperate with the EEOC during the investigation to take advantage of any equitable arguments they may have.  Employers need to remember that failure to  verify the charge can be remedied so long as the charge process is ongoing. 

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Over the past several weeks, there have been a large number of Title III ADA public accommodation lawsuits filed around Alabama in federal court.  These lawsuits, filed by the same law firm, use the same plaintiffs, who are disabled and often in wheelchairs, to visit various places of public accommodation and allege that they are denied full, safe and equal access to the properties due to their lack of compliance with the ADA.  The plaintiffs are trained to spot violations of the ADA, including such things as improper signage for handicapped parking, the slope/grade of handicapped ramps, the size of entrance doors, the pressure needed to open doors, the width of bathroom doors and stalls, and various other violations.  The way these suits usually proceed is that a lawsuit is filed, and then a meeting is requested to inspect the premises by the plaintiff's attorney and his architectural expert.  If the owner of the property is willing to correct the deficiencies, and pay for the expert and attorney's fees, the case will be dismissed upon reaching agreement as to these issues.  If not, the lawsuit continues. 

Practice Pointer.  The expense for correcting violations of the ADA in places of public accommodation can range from several thousand dollars to over a million dollars.  When I am out and about, and go into places of public accommodations, such as gas stations, restaurants, shopping centers, etc., I notice violations of the ADA on a regular basis.  It is advisable for owners of properties, that qualify as a place of public accommodation,  do an ADA audit to make sure that they are in compliance with the ADA.  Spending a little time and money up front to ensure compliance with the ADA may save a great deal of time and expense if a lawsuit is filed.

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Over the last several weeks, both the Alabama Court of Civil Appeals and the 11th Circuit Court of Appeals have issued a number of cases that impact the employment arena.  In my opinion, the most important ones are the following:

1.  Duran v. Goff Group:  Silva was working in Alabama for Jarman Construction when he died as the result of an on the job accident in 2003.  He was survived by a wife and two minor children, both of whom resided in Mexico at the time of his death.  The workers' compensation carrier, Goff Group, filed for a declaratory judgment that death benefits were not payable to Silva's dependents because they were nonresident aliens.  The Court of Civil Appeals found that since the dependents were neither citizens nor resident aliens in the United States, they were not afforded Constitutional guaranties to equal protection and due process.  The Court further found that the rights of dependents are separate and distinct from the rights of the deceased employee rather than derivative of the employee's rights.  As such, the non-resident alien dependents were not entitled to death benefits under Alabama's workers' compensation statute. 

2.  Allmond v. Akal Security Inc.:  Allmond applied for a job with Akal Security Inc. which, among other things, provided security officers at federal courthouses under contract with the U.S. Marshals Service.  Allmond was employed as a security officer in Columbus, Georgia.  One of the prerequisites of holding this job was to pass a hearing test, without the use of a hearing aid since the security officers must "be able to clearly understand directions in time of crisis....must be able to hear communication at a level of sound that does not inform persons causing an incident of the [officers'] response plans...[and] must be able to discern the direction of a disturbance or detect an approaching threat".  The hearing aid ban ensures that the officers can perform their job duties in the event the hearing aid fails or becomes dislodged.  Allmond failed the hearing test, and filed his lawsuit under the ADA and Rehabilitation Act.  The 11th Circuit, upholding the trial court's granting of summary judgment against Allmond, found that the hearing aid ban was job related and was consistent with a business necessity.  "When considered in the light of the tremendous harm that could result if a security officer could not perform the essential hearing functions of his job at a given moment, we accept this justification as legitimate and wholly consistent with business necessity".

3.  Gregory v. First Title of America Inc.:  Gregory worked as marketing representative for First Title, a title insurance company.  After she left her employment, she sued for overtime pay under the FLSA, seeking $10,000 in unpaid overtime compensation.  Her allegations included the fact that she never consummated a sale, that she was employed only to promote the company's services and to stimulate sales.  At her deposition, she testified that she did in fact obtain orders for title insurance and was paid a commission on her successful sales.  The 11th Circuit found that she was exempt under the FLSA as an oustside sales employee:  she was customarily and regularly performing her duties away from her employer's place of business, free from direct supervision,  that her primary duty was to obtain orders for title insurance, and her income was directed related to the number of orders she brought in or obtained. 

Seminar Update.  Due to an overwhelming response, my firm, Sirote & Permutt will conduct a second seminar addressing actual and anticipated changes in employment law on March 11, 2009 at Vulcan Park in Birmingham.  If you are interested in attending please contact ewilbourne@sirote.com or call 205.930.5494 to RSVP.

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This is the third entry in a series addressing issues that may arise in 2009.  This entry  will focus on employment trends, both in Alabama and nationwide. 

In a recent report in the Birmingham News concerning union participation, figures from the  Bureau of Labor Statistics show that  the number of Alabama workers who are union members barely increased in from 180,000 in 2007 to 181,000 in 2008.   In 2007,  9.8%, of Alabama's workforce was represented by unions.  This number increased sligtly to 10.7% in 2009.  The percentage of union workers in Alabama was tops in the Southeast, ahead of Florida (7.9%), Mississippi (7.3%), Tennessee (6.6%) and Georgia (4.6%).  I anticipate that these numbers will increase in 2009 and 2010, and the increase may be significant if the Employee Free Choice Act becomes law.

The Bureau of Labor Statistics reported that in 2008 a total of 2,394,434 workers were laid off, with 226,117 being laid off in December.  With more companies announcing layoffs, such as GM and Wal-Mart this week, it appears as if 2009 will continue to be a bad year for workers losing their jobs.  Alabama workers are not immune:  so far this year, at least 10 large Alabama employers have notifed the state that they intend to terminate approximately 1,700 employees from ther jobs.  Most recently, Graphic Packaging International in Tuscaloosa, announced this week that it is planning on laying off 90 workers later in 2009.

Several weeks ago,  the New York TImes ran a story entitled "Layoffs Herald a Heday for Employee Lawsuits", concluding that many of the newly terminated employees will head to the EEOC or attorneys to pursue legal action. 

Practice Pointer.  As more employees are terminated from their jobs, I anticipate that there will be an increase in claims and lawsuits, especially since they will have difficulty finding new jobs in this tight job market.  Employers need to update their policies and procedures to comply with existing and new employment laws, train the managerial and supervisory staff as to the laws and the company's policies, and treat their employees as fairly as possible during these difficult times.

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As we move through 2009,  I anticipate a great deal of activity on the employment front, both in Congress and in the courts.  There are a number of proposed new employment laws that have high priority with the current administration.  These include:

     Employment Non-Discrimination Act (ENDA): This bill prohibits discrimination based on sexual orientation.  There is a possibility that this bill would also prohibit transgender and bisexual discrimination.

       Healthy Families Act: This bill would require employers to pay for 7 sick days a year.  There must be 15 or more employees working at the business to be covered. 

     Employee Free Choice Act (EFCA): I wrote about this in detail in my January 30 blog entry.  This bill would effectively replace the secret ballot in union elections and replace it with a card check process.

     Civil Rights Act of 2008: This bill has many components, the most important of which are:  a)  Remove the damage caps currently in existence under Title VII and the ADA; b)  add compensatory and punitive damages under the FLSA; c)  prohibit arbitration in employment related cases unless the employee agrees to arbitration after the dispute has arisen; and d)  allow employees to recover expenses even if they are not the prevailing party in a lawsuit in all respects.

     FOREWARN Act:  this act would amend the Warn Act to apply to employers with 50 or more employees, instead of 100, and would require 90 days notice of plant closings or mass layoffs instead of the current 60 days.   At the present time, the WARN act's provisions concerning mass layoffs apply to employers with 500 or more employees: FOREWARN would reduce this number to 100.

I anticipate the courts, especially the District Courts, will be busy in 2009 and 2010.  They will be busy looking at the ADAAA, the new FMLA regulations and other new laws that may be passed by Congress.  The Supreme Court, which has already decided two employment related cases so far this year, has agreed to hear oral argument in the case of Ricci v. DeStefano, which deals with a reverse discrimination claim and whether a municipality can decline to certify results of a civil service exam that would make disproportionately more white applicants eligible for promotion than minority applicants.  The white and Hispanic plaintiffs claim they would have been promoted if the city did not invalidate the test results because no black candidate scored high enough to be promoted.  The Supreme Court will decide the following question: 

Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.

Practice Pointer.    Employers need to stay on top of the new laws and changes in existing laws as we move through 2009.  To that end, my law firm, Sirote & Permutt is hosting a free seminar, addressing the anticipated changes in employment law. The seminar will be held on February 25, 2009 from 11:30 am to 1:00 pm at Vulcan Park in Birmingham.  If you are interested in attending, please click here to view the invitation and make your reservation.  Space is limited.

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As we enter 2009, a perfect storm is brewing for changes in the employment arena.  A worsening economy.  A new Democratic President. Both houses of Congress controlled by Democrats.  An active Supreme Court.  An FDR depression era type stimulus plan.  Part 1 of The Perfect Storm will focus on what has already happened in 2009.  Part 2, to follow later this week, will focus on what may happen for the remainder of the year.

The Americans With Disabilities Amendment Act of 2009 became effective on January 1, 2009.  The new regulations for the Family Medical Leave Act became effective several weeks ago.

President Obama has been active, signing 3 Executive Orders on Friday, January 30, 2009 addressing Labor and Employment issues.  The "Notification of Employee Rights Under Federal Labor Laws" requires federal government contractors to post, in "conspicuous places", a notice informing employees that they have the right to join, or not join, a union.   The "Economy in Government Contracting" Executive Order prohibits Federal Contractors from obtaining reimbursement for funds expended to "persuade employees-whether employees of the recipient of the Federal disbursements or of any other entity-to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively through representatives of the employees' own choosing."  The third Executive Order, "Nondisplacement of Qualified Workers Under Service Contracts", states that service contracts "shall include a clause that requires the contractor, and its subcontractors, under a contract that succeeds a contract for performance of the same or similar services at the same location, to offer those employees (other than managerial and supervisory employees)... a right of first refusal of employment under the contract in positions for which they are qualified."  And as previously posted on my blog, President Obama signed the Lilly Ledbetter Equal Pay Act into law.

The United States Supreme Court has been active also, issuing 2 opinions dealing with employment issues. As discussed last week in my blog, in the Crawford case, the court dealt with retaliation against a participant in an internal investigation.  In  Fitzgerald v. Barnstable School Committee, a peer on peer sexual harassment case, the Court found that claims can be brought under both Title IX and Section 1983. 

On the immigration front, the implementation of the new I-9 forms that were supposed to be effective as of today, February 2, 2009 has been delayed until April 3, 2009.  And as a reminder as to the consequences of employing undocumented workers, Beverly Linan, who owned and operated Rodriquez Construction Company in Alabaster, Alabama, was indicted last week in Federal Court in a 3 count indictment  " charging harboring of illegal aliens, knowingly employing illegal aliens and a forfeiture count to recover profits made from employing illegal aliens, according a news release."

Part 2 of The Perfect Storm, which will be published later this week, will address what we can expect on the legislative and judicial fronts for the remainder of the year.  

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The Lilly Ledbetter Fair Pay Act of 2009, the passage of which was one of President Obama's main priorities, appears  ready to be signed into law.  President Obama is scheduled to sign the Act tomorrow morning, January 29, 2009.  The Act, which will amend Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act, will re-start the applicable statue of limitations each time a pay check or other benefits are paid for claims involving discrimination on compensation.  The law overturns the 2007 Supreme Court decision in Ledbetter v. Goodyear, arising out of Alabama.  In my opinion, the most important language of the Act is as follows:

"For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

The act purports to apply retroactively as set forth by Congress:  "This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation...that are pending on or after that date."

Lily Ledbetter, who campaigned for President Obama, is quoted in the Birmingham News as follows:   "I will be treated like a second-class citizen by that corporation for the rest of my life," she said, noting that her retirement benefits reflect her lower pay. "But I have the satisfaction of getting this law changed back so that other people can still file."

Practice Pointer.  Now is the time for employers to review their pay polices and pay structure to make sure that there is no discrimination in pay under Title VII, ADEA, ADA and the Rehabilitation Act.  Employers should consider reviewing their pay practices from May 28, 2007, the effective date of this new law, forward.

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Since the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was signed into law on September 28, 2008 by President Bush, many plaintiff's attorneys have attempted to argue that the  changes should apply retroactively to cases already pending in court.  Since the ADAAA made significant and substantial changes to existing law as developed by the Supreme Court, plaintiff's have argued that the employee friendly changes should apply to their cases that covered conduct allegedly in violation of the ADA, that occurred prior to January 1, 2009, the effective date of the ADAAA.

The Fifth Circuit Court of Appeals, in EEOC v. Agro Distrib. LLC, (5th Cir., No. 07-60447, 1/15/09) held that the ADAAA should not be retroactively applied.  Two of my partners, Kyle Smith and David Mellon, tried an ADA case last week in the U.S. District Court for the Middle District of Alabama, in Montgomery, before Judge Fuller.  Plaintiff's counsel argued that the ADAAA should apply retroactively to conduct that occurred several years ago.  Judge Fuller ruled consistently with the Fifth Circuit, finding that the ADA, not the ADAAA, was the correct law to use in deciding this case.  The jury returned a defense verdict in that case.

I anticipate that as more courts rule on this issue, they will be consistent with the findings of the Fifth Circuit and Judge Fuller.

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The Seattle Business Journal recently reported that in a survey of companies in the United States and Great Britain, corporate counsel expected the number of lawsuits filed against their companies  to increase in 2009.  Fulbright and Jaworski's 5th annual Litigation Trends Survey shows that 34% of companies are anticipating increased litigation in 2009, as opposed to 22% who predicted increased litigation for 2008.  The report goes on to state that in-house counsel reported increases in wage and hour litigation and privacy claims. 

As we rapidly approach 2009,  the Americans With Disabilities Amendment Act of 2008, with an effective date of January 1, 2009, and the new FMLA Regulations, with an effective date of January 16, 2009, will, in my judgment, lead to an increase in litigation in these areas.  Now is the time for employers to educate their HR professionals, managers and supervisory staff so they can effectively deal with these changes.

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President Bush recently signed the Americans with Disabilities Amendment Act of 2008 (ADAAA), which will become effective on January 1, 2009. The ADAAA will have a major impact on new cases filed after this date. Congress's intent in passing the ADAAA is to increase the coverage to additional employees. I anticipate that the ADAAA will result in a spike in new lawsuits being filed.

Some of the major changes of the ADAAA are:

1.   Pending cases.   Cases pending as of December 31, 2008 will be covered under the existing ADA and various court decisions.

2.  Supreme Court Decisions.  The Supreme Court's narrow interpretation of "disability" has been rejected by Congress, with the ADAAA stating that "substantially limits" shall be interpreted consistent with the findings and purposes of the ADA.

3. Mitigating Measures.  The ADAAA, with the exception of "ordinary eyeglasses or contact lenses" specifically sets forth that the effects of mitigating measures should not be considered in determining whether or not an individual has an impairment that substantially limits major life activity.

4. Substantially Limits. Congress specifically rejected the Supreme Court's narrow definition of "substantially limits" in Toyota Motor Mfg. Kentucky, Inc. v. Williams and instructs the courts to interpret "substantially limits" consistently with the findings and purposes of the ADA.

5. Major Life Activity.  The ADAAA sets forth a non-exhaustive list of major life activities including but not limited to "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." The ADAAA also sets forth as a major life activity, major bodily functions, including but not limited to "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."

6. New Regulations.  The ADAAA grants the EEOC, the Attorney General and Secretary of Transportation the authority to issue regulations interpreting the definition of disability under the ADA.

Practice Pointers

1. Now is the time to educate yourself, your HR Department and your supervisory employees as to the impact of the ADAAA.

2. Review and amend as necessary the job descriptions and essential functions of the jobs at your place of business.

3. For any employee who has requested an accommodation under the ADA, whether it was granted or not, reengage in the interactive process in light of the ADAAA, to ensure that those who are entitled to a reasonable accommodation receive it.

4. Consult with your employment attorney concerning how the ADAAA will impact your company.

Of course, I am available to help you should the need arise. I was invited to participate at a seminar for Sterling Education Service that took place on November 19, 2008 in Birmingham. My presentation addressed the ADAAA.  To view my written handout, click here:  ADAAA Handout

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